Millennium Post

Equality in letter & spirit

Equality in letter & spirit

Centre's demand for a review of the 'creamy layer' concept applied to SC/STs has brought forth once again the question of reservation and equality being genuinely extended to the weakest of the weak. Before anything, 'creamy layer' was coined in the famous 1992 Indra Sawhney vs Union of India case wherein a nine-judge bench had upheld reservations for OBCs in 1992 by Central government (based on Mandal Commission report identifying socially or educationally backward classes), but ruled that creamy layer — the affluent among disadvantaged sections — among the backward class of citizens must be excluded "by fixation of proper income, property or status criteria" by the Central government. The court asserted that on these specifications, people falling in the creamy layer would not get the benefit of reservations. SC also held that reservations in appointments — under Article 16(4) of the Constitution — do not apply to promotions. Fast forward to 2006, in Nagaraj vs Union of India, SC approved Parliament's decision to extend reservations for SCs and STs to include promotions but also held that the creamy layer concept was applicable to SCs and STs. This is where the Centre's current plea revolves. By virtue of its 2006 judgment in the M Nagaraj case, the Supreme Court, in its September 2018 judgment in the Jarnail Singh case, favoured the application of creamy layer concept on SC/STs — the case specifically upheld the concept to be applied in promotions. SC had also refused Centre's plea to refer the 2006 Nagaraj judgment to a seven-judge bench. An elaborate judgment authored by Justice Rohinton F Nariman had observed that "the whole object of reservation is to see that the backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis... This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were". The 2018 judgment also clarified that in its application of creamy layer principle to SC/STs, the court does not fiddle with the Presidential List under Articles 341 or 342. This meant that the class, group, sub-group under the list continues exactly as before but "it is only those within that group or sub-group, who have come out of the untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation", as explained by Justice Nariman. So drawing inference from Justice Nariman's reasoning, one can say that the true aim of the concept of creamy layer is to allow for the alleviation of those in the said groups who happen to be 'still' in need of the benefits accorded under the reservation. Centre's plea to refer the 2006 Nagaraj judgment — which extended creamy layer principle to SC/STs — to a seven-judge bench challenges the application of the said principle on SC/STs. While a two-week time has been sought by the incumbent Chief Justice SA Bobde, it is imperative to note that the plea has been lingering in the lawns of the top court for a while now. SC's 2006 judgment is yet to be implemented — even after 13 years — as successive governments have only pushed for a review by a bigger bench, with the latest coming on Monday. The matter attracts adequate deliberation since Centre's plea for a review of the creamy layer concept on SC/STs draws a sharp contrast with what SC has been advocating for 13 years.

The Indra Sawhney judgment gave birth to the creamy layer, which, as explained by Justice Nariman in his 2018 judgment, is necessary to be excluded from the reservation to uphold its true aim to bring forward and outrightly support those in need. Unless it is implemented, the creamy layer will continue to sit on the support that must be extended to the weaker ones in line under the quota. The top creamy layer's presence will always keep the weakest amongst the weak always deprived of benefits that the Constitution itself promises to provide. SC's ruling of creamy layer is based on the fundamental right to equality enshrined in the Constitution. And, that right cannot be completely delivered in letter and spirit if the right is not exercised by the entire class of weak who remain in need of the same. It is interesting to note that the entire argument of creamy layer and benefits to the actual needy arises as an offshoot from the Parliament's decision of providing quotas in promotions to SC/STs — Constitution (77th Amendment) Act, 1995 — which, followed by few other amendments, prepared the preface for 2006 judgment. Promotion comes secondary to the actual object of reservations. Promotions under reservation to SC/STs without keeping the creamy layer principle in mind would simply mean the fortunate ones of the class grabbing more opportunities and rising even higher than their not-so-fortunate counterparts. This will inevitably result in an inter-class disparity which is not what the apex court strives to promote under any circumstance. SC's reiteration of the same logic even after years of Centre's review plea should spark an introspective consideration on the latter's part regarding its pursuit of the aforementioned plea. It is the share of resources earmarked for those in real need that the state ought to strive for rather than safeguarding the same for those who do not find themselves in backward circumstances anymore. Only then will the true pursuit of equality, backed by reservations, bloom in letter and spirit!

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